This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1023

 

 

Lisa M. Lee, a/k/a Lisa Marie Lee,

n/k/a Lisa M. Breuer, petitioner,

Appellant,

 

vs.

 

James P. Herbert, a/k/a James Patrick Herbert,

Respondent.

 

Filed May 4, 2004

Affirmed in part, reversed in part, and remanded

Lansing, Judge

 

Hennepin County District Court

File No. PA 38611

 

 

Douglas G. Sauter, William D. Siegel, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Minneapolis, MN  55433 (for appellant)

 

Jeanette A. Frederickson, Frederickson & Associates, P.A., 300 Lumber Exchange, 10 South Fifth Street, Minneapolis, MN  55402 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            This is an appeal from a district court order that raises parenting-time and child-support issues. Lisa Breuer challenges the procedures used by the parenting-time expeditor, the scope of the expeditor’s authority to make decisions, the district court’s denial of her motion to remove the expeditor for cause, and the imposition of attorneys’ fees.  Although the parents’ inability to make joint decisions for their child has complicated the proceedings, we find no abuse of discretion or error of law, and we affirm.

F A C T S

 

            James Herbert and Lisa Breuer are the parents of a child who was born on December 10, 1997.  In November 1999 Herbert and Breuer agreed to share joint legal and physical custody of the child and incorporated that agreement into a stipulated  parenting plan in February 2001.  When the parenting plan was signed, Breuer lived in Bloomington and Herbert lived in Richfield, approximately eight miles from each other.  In May 2001 Breuer requested the court’s permission to move with the child to Park Rapids, Minnesota; the district court issued an order denying permission. That same month Breuer changed the child’s preschool without Herbert’s knowledge or permission.

            In November 2001 Herbert moved to modify the parenting-time schedule, to apply the Hortis-Valento formula to calculate child support, to provide that the child would attend school in Richfield or Bloomington, and to resolve a number of related issues.  The district court found that Breuer had “unilaterally revoked” a mediated child support agreement, changed the child’s preschool without consulting Herbert, and improperly instituted wage withholding.  The district court adopted Herbert’s proposed parenting-time schedule as being in the child’s best interests, applied the Hortis-Valento formula to determine child support, and appointed a licensed social worker as a parenting-time expeditor.  The order specifically provided that the expeditor would assist the parties to reach an agreement, but if they could not, the expeditor would make a decision within five days of the mediation conference.  The order further provided that after an agreement was reached or after the expeditor made a decision resolving the dispute, the expeditor would file the written agreement or resolution with the district court and provide copies to Breuer and Herbert.  The order was not appealed.

            In June 2002, Breuer moved to Carver County.  The parenting-time expeditor was unable to facilitate an agreement between Herbert and Breuer on the location for parenting-time transitions or the school district for the child’s school attendance.  Breuer and Herbert agreed to meet again on these issues, and a meeting was scheduled for July 31, 2002.

The expeditor reported to the court that Breuer declined to attend the July 31 meeting.  Breuer disputes that she had notice of the meeting but advised the expeditor in advance that she objected to mediating any issue except parenting time.  The expeditor informed the court that the unresolved issues stemmed from parenting-time disagreements and expressed concern that making another change in expeditors would destabilize the mediation and aggravate the tension in the co-parenting.  The expeditor requested that the court provide direction on how to proceed.

The district court referee who had been handling this file issued an order in September 2002.  The order authorized the expeditor to continue to mediate all issues that he deemed relevant to the parenting-time dispute.  The court found that Breuer had persistently and willfully interfered with Herbert’s parenting time, exercised bad faith on financial issues relating to child support, and demonstrated a pattern of making unilateral and dramatic changes in the child’s life that affected Herbert’s relationship with the child.

            Herbert and Breuer met with the expeditor on October 16, 2002.  Following that meeting the expeditor sent a report to the district court stating that Breuer and Herbert had agreed to enroll their daughter in the Chaska school district and mutually to select a school within that district based on the child’s educational needs; to make parenting-time transitions at a location about halfway between their homes; and to reserve child support effective October 16, 2002.  The expeditor directed Breuer’s attorney to draft the written agreement, subject to review by Herbert’s attorney, which would then be forwarded to the court.

In November 2002 Herbert sent a letter to Breuer advising her that he had purchased a home in Chanhassen, within the Chaska school district.  He also indicated that he understood their agreement essentially to be a termination rather than reservation of child support, but he agreed to use the word “reservation” with that understanding.  In response, Breuer’s attorney wrote to Herbert’s attorney alleging that Herbert’s failure to disclose his pending house purchase before the mediation meeting demonstrated bad faith in the negotiation to reserve child support. The letter indicated that Breuer would be willing to honor the agreement only if she would have the right to choose the specific elementary school the child would attend.

Three months later the expeditor determined that the written agreement was not forthcoming and issued a statement of findings.  The expeditor found that the child would be enrolled in the Chaska School District for kindergarten, that mutual selection of a specific school for first through fifth grades would be based on consultation with the child’s teachers and educational professionals, that parenting-time transfers would be made at a point midway between Breuer’s and Herbert’s homes, and that the issue of Herbert’s child support would be reserved by reinstatement of the October 16 agreement.  In mid-March the expeditor submitted the findings to the court, together with a summary of the agreement that had been reached on October 16, 2002.

Breuer and Herbert filed competing motions.  Breuer moved that the child be enrolled for first grade at East Union Elementary School, to reinstate Herbert’s child support obligation, to remove the expeditor, and to impose attorneys’ fees.  Herbert moved to enforce the October 16 agreement and also requested attorneys’ fees.

In findings affirmed by the district court, the referee again found that Breuer had a history of disregarding court orders and of making unilateral changes that affected Herbert’s relationship with the child; that Breuer’s allegation that Herbert had not revealed his impending move was unsupported and, in any event, did not justify Breuer’s contention that she need not comply with the October 16 agreement; that Breuer and Herbert must cooperate with the expeditor; and that Herbert was entitled to attorneys’ fees because of Breuer’s bad-faith actions.  The court ordered enforcement of the October 16 agreement according to the terms summarized by the expeditor, including the reservation of child support.  The court denied Breuer’s request to remove the expeditor and reaffirmed the expeditor’s authority to address all issues that the expeditor deemed to relate to parenting time.  And the court provided that if Breuer and Herbert could not mutually agree on a parenting-time transfer location or a specific elementary school by January 1, 2004, the expeditor would make the final decision.

Breuer appeals, challenging (1) the court’s reliance on the October 16 agreement and the scope of the expeditor’s decision-making authority, (2) the court’s refusal to discharge the expeditor, and (3) the order for attorneys’ fees.

D E C I S I O N

I

“A ‘parenting time expeditor’ is a neutral person authorized to use a mediation-arbitration process to resolve parenting time disputes.”  Minn. Stat. § 518.1751, subd. 1b(c) (2002).  The expeditor is charged with attempting to resolve disputes by facilitating negotiations, but if the dispute cannot be resolved by agreement, the expeditor is charged with making a decision resolving the dispute.  Id

Breuer’s appeal is primarily a challenge to the referee’s findings, approved by the district court, that relies on an agreement summarized by the expeditor.  Breuer disputes that she and Herbert reached an agreement on October 16, 2002, and contends that even if they did reach an agreement, Herbert’s bad faith should negate it.

To properly review these challenges, it is necessary to take into account the context of this extended mediation process.  Breuer and Herbert have been parenting by mediation since October 1998.  According to Herbert, the current expeditor is the fourth mediator who has been involved in an attempt to facilitate decisions on custody, parenting schedules, child support, parenting-time transition, and school selection.  The district court, in its February 6, 2002 order, appointed the current expeditor and provided specific procedures that the expeditor should follow to attempt to assist Breuer and Herbert in reaching an agreement and to make findings when an agreement could not be reached. 

The district court found that Breuer and Herbert reached an agreement in the October 16, 2002, mediation session on school choice, transition location, and the reservation of child support.  Breuer contends that because she and Herbert did not put the agreement in writing, it cannot be considered an agreement within the purview of Minn. Stat. § 518.1751, subd. 3(d) (2002).  This argument ignores the court’s February 2002 order and Minn. Stat. § 518.1751, subd. 3(d), which both provide that the expeditor shall put the agreement into writing, and, when an agreement cannot be reached, the expeditor shall put the decision in writing.  The court, as it did in these circumstances, may then “enforce, modify, or vacate the agreement of the parties or the decision of the expeditor.”  Minn. Stat. § 518.1751, subd. 3(d).

The expeditor provided the court with a written summary of the October 16, 2002 agreement.  The summary outlined Breuer and Herbert’s agreement on a method for school choice, transition location, and a reservation of child support in exchange for designating Chaska as the child’s school district.  Breuer and Herbert shook hands on the agreement and Breuer’s attorney took the responsibility for reducing it to writing.  The facts support the expeditor’s account of the agreement.  The failure of Breuer’s attorney to reduce it to writing does not revoke Breuer or Herbert’s mutual assent.

Breuer contends that even if they did reach an agreement, she was materially misled because if she had known that Herbert had purchased a home in Chanhassen, within the Chaska school district, she would not have been willing to agree to reserve child support.  For three reasons, this argument is untenable.  First, Herbert had not purchased a house in Chanhassen before the October meeting.  Second, Herbert’s purchase agreement on a house in Chanhassen did not demonstrate bad faith, but rather an attempt to reasonably accommodate the difficult co-parenting situation.  Breuer had married and was living in Carver, which is in the Chaska school district.  For Herbert and his wife to move from Richfield into the Chaska school district and commute a substantial distance to their jobs appears to be a significant inconvenience that they were willing to undertake as part of co-parenting.  And third, the reservation of child support was not contingent on Herbert’s home remaining outside the Chaska school district.  

Courts are not bound by an agreement between the parents of a minor child with respect to support, “but will be controlled by the welfare of the child as the paramount consideration.”  Tammen v. Tammen, 289 Minn. 28, 30, 182 N.W.2d 840, 842 (1970).  The district court may, however, take an agreement into account when considering a child’s best interests.  McNattin v. McNattin, 450 N.W.2d 169, 171 (Minn. App. 1990); see also Beach v. Anderson, 417 N.W.2d 709, 712 (Minn. App. 1988) (upholding stipulated agreement when settlement was carefully negotiated and one party changed position in reliance on agreement), review denied (Minn. Mar. 23, 1988).

Ordinarily, a child-support reservation would not be an issue that would be determined in the context of a parenting-time-dispute resolution.  But the course of this proceeding has not been ordinary.  Breuer and Herbert have resolved their child support issues through a mediator in the past, and the record indicates that Breuer introduced the child-support-reservation issue into the parenting-time-dispute resolution as a counterweight to her desired resolution of school selection.  In the context of this extended negotiation and the history of disruptive parental interaction, Breuer is hard pressed to demonstrate that it was an abuse of the district court’s discretion to enforce the agreement between her and Herbert or to effectuate the decision of the expeditor.  We conclude that there was no error of law or abuse of discretion in the district court’s order on the issues of school selection, parenting transition location, or reservation of child support.

II

Breuer’s challenge to the district court’s admitting the expeditor’s written notes into evidence must also be viewed in the context of the procedural posture of this case.  Under Minn. Stat. § 518.1751, subd. 4a (2002), nondiscoverable documents produced as part of the parenting-time-expeditor process are inadmissible as evidence, and notes of a parenting-time expeditor are confidential and may not be disclosed unless the court, after a hearing, orders their in camera review.  The district court considered as evidence the expeditor’s letter to the court summarizing the October 16, 2002 agreement, his findings made when Breuer disputed the existence of the agreement, and a statement written by Herbert with the expeditor’s initials confirming parts of the agreement.

These documents were provided to the court in the normal course of the expeditor’s duties.  The expeditor had been directed to report to the court because of the drawn-out proceedings.  These documents do not reveal confidential positions of the parties but affirm the existence and terms of the parties’ negotiated agreement; consequently, the district court did not abuse its discretion in admitting them to determine whether an agreement had in fact been made and to ascertain the terms of that agreement.  See Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001) (reiterating abuse-of-discretion standard for evidentiary rulings), review denied (Minn. Oct. 24, 2001).

Finally, the district court did not abuse its discretion in refusing to discharge the expeditor.  Breuer argues that the expeditor should be discharged for providing his notes as evidence in the district court proceedings, exceeding the scope of his power on school selection, and for his inability to assist Breuer and Herbert in reaching resolution on disputed issues.

The contention over providing notes to the court has been addressed and determined to be within the court’s discretion on the issue of whether an agreement was reached.  The second contention, a challenge to the method of school choice, is also unpersuasive.  The expeditor’s school-choice findings, adopted by the district court, did not recommend a specific school but provided a method that deferred to the child’s teacher and education professionals as well as the parties’ ability mutually to decide on an appropriate school placement for their child.  See Novak v. Novak, 446 N.W.2d 422, 424 (Minn. App. 1989) (recognizing that district court must resolve, consistent with child’s best interests, joint legal custodians’ disagreement on choice of school), review denied (Minn. Dec. 1, 1989).  The third contention, that the expeditor was unable to forge agreements, would appear to demand an unrealistically high standard of an expeditor, given the history of this case.  Furthermore, the removal of an expeditor is warranted, not for failure to serve a parent’s best interests, but when an expeditor’s actions do not serve the child’s best interests.  See Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995) (holding visitation between child and grandparent was in child’s best interests despite parent’s decision to forbid visitation).

This case does not present the ideal situation for court-ordered mediation.  Consequently, the parenting-time expeditor and the district court have been forced to rely on more flexible procedures in attempting to resolve disputes.  We conclude that the circumstances have warranted the flexibility in procedures and that the district court did not abuse its discretion in relying on the expeditor’s findings of an agreement to bring closure to these proceedings.  We further conclude that the court did not abuse its discretion in refusing to discharge the expeditor.

III

The district court ordered Breuer to pay Herbert “$2,800 in attorney’s fees due to the actions of [Breuer] which the Court believes were done in bad faith.”  Breuer and Herbert address this issue as a grant of attorneys’ fees under Minn. Stat. § 518.14 (2002). That provision authorizes the district court to order need-based fees and, “in its discretion, additional fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding.”  Id., subd. 1.

The district court stated that the fees were based on Breuer’s bad-faith acts, but did not specify which acts.  To permit reasoned appellate review, findings must indicate the authority for the grant of attorneys’ fees and must identify the acts that warrant the imposition of fees.  See Geske v. Marcolina, 624 N.W.2d 813, 818-19 (Minn. App. 2001) (reversing and remanding decision on conduct-based attorneys’ fees for failure to identify specific conduct that justified fees).  For conduct-based attorneys’ fees ordered under Minn. Stat. § 518.14, appellate review requires the identification of the specific acts to determine whether the conduct occurred as part of the litigation and whether it extended the length or increased the expense of the litigation.  See Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992) (requiring findings on basis and grounds for conduct-based attorneys’ fees).  We therefore reverse and remand this issue for more specific findings by the district court.

Affirmed in part, reversed in part, and remanded.